10/08/2013

The Decision Stouthearted Justice Scalia Calls "Heroic"

Jennifer Senior's New York magazine interview with Justice Scalia asks for his most "heroic" opinion. The answer (after some hemming and hawing):

I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse [in the case involving Vice-President Cheney, with whom he'd gone duck hunting.]I thought that took some guts. Most of my opinions don’t take guts. They
take smarts. But not courage. And I was proud of that. I did the right
thing and it let me in for a lot of criticism and it was the right thing
to do and I was proud of that. So that’s the only heroic thing I’ve
done.

A rule that required Members of this Court to remove themselves from
cases in which the official actions of friends were at issue would be
utterly disabling. Many Justices have reached this Court precisely
because they were friends of the incumbent President or other senior
officials—and from the earliest days down to modern times Justices have
had close personal relationships with the President and other officers
of the Executive. John Quincy Adams hosted dinner parties featuring such
luminaries as Chief Justice Marshall, Justices Johnson, Story, and
Todd, Attorney General Wirt, and Daniel Webster. 5 Memoirs of John 917*917
Quincy Adams 322-323 (C. Adams ed. 1875, reprint 1969) (Diary Entry of
Mar. 8, 1821). Justice Harlan and his wife often "`stopped in'" at the
White House to see the Hayes family and pass a Sunday evening in a small
group, visiting and singing hymns. M. Harlan, Some Memories of a Long
Life, 1854-1911, p. 99 (2001). Justice Stone tossed around a medicine
ball with members of the Hoover administration mornings outside the
White House. 2 Memoirs of Herbert Hoover 327 (1952). Justice Douglas was
a regular at President Franklin Roosevelt's poker parties; Chief
Justice Vinson played poker with President Truman. J. Simon, Independent
Journey: The Life of William O. Douglas 220-221 (1980); D. McCullough,
Truman 511 (1992). A no-friends rule would have disqualified much of the
Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952),
the case that challenged President Truman's seizure of the steel mills.
Most of the Justices knew Truman well, and four had been appointed by
him. A no-friends rule would surely have required Justice Holmes's
recusal in Northern Securities Co. v. United States, 193 U. S. 197 (1904),
the case that challenged President Theodore Roosevelt's trust-busting
initiative. See S. Novick, Honorable Justice: The Life of Oliver Wendell
Holmes 264 (1989) ("Holmes and Fanny dined at the White House every
week or two. . .").

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The Decision Stouthearted Justice Scalia Calls "Heroic"

Jennifer Senior's New York magazine interview with Justice Scalia asks for his most "heroic" opinion. The answer (after some hemming and hawing):

I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse [in the case involving Vice-President Cheney, with whom he'd gone duck hunting.]I thought that took some guts. Most of my opinions don’t take guts. They
take smarts. But not courage. And I was proud of that. I did the right
thing and it let me in for a lot of criticism and it was the right thing
to do and I was proud of that. So that’s the only heroic thing I’ve
done.

A rule that required Members of this Court to remove themselves from
cases in which the official actions of friends were at issue would be
utterly disabling. Many Justices have reached this Court precisely
because they were friends of the incumbent President or other senior
officials—and from the earliest days down to modern times Justices have
had close personal relationships with the President and other officers
of the Executive. John Quincy Adams hosted dinner parties featuring such
luminaries as Chief Justice Marshall, Justices Johnson, Story, and
Todd, Attorney General Wirt, and Daniel Webster. 5 Memoirs of John 917*917
Quincy Adams 322-323 (C. Adams ed. 1875, reprint 1969) (Diary Entry of
Mar. 8, 1821). Justice Harlan and his wife often "`stopped in'" at the
White House to see the Hayes family and pass a Sunday evening in a small
group, visiting and singing hymns. M. Harlan, Some Memories of a Long
Life, 1854-1911, p. 99 (2001). Justice Stone tossed around a medicine
ball with members of the Hoover administration mornings outside the
White House. 2 Memoirs of Herbert Hoover 327 (1952). Justice Douglas was
a regular at President Franklin Roosevelt's poker parties; Chief
Justice Vinson played poker with President Truman. J. Simon, Independent
Journey: The Life of William O. Douglas 220-221 (1980); D. McCullough,
Truman 511 (1992). A no-friends rule would have disqualified much of the
Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952),
the case that challenged President Truman's seizure of the steel mills.
Most of the Justices knew Truman well, and four had been appointed by
him. A no-friends rule would surely have required Justice Holmes's
recusal in Northern Securities Co. v. United States, 193 U. S. 197 (1904),
the case that challenged President Theodore Roosevelt's trust-busting
initiative. See S. Novick, Honorable Justice: The Life of Oliver Wendell
Holmes 264 (1989) ("Holmes and Fanny dined at the White House every
week or two. . .").